Residents, officials concerned about townhouse development at Har Jehuda Cemetery in Upper Darby

By KEVIN TUSTIN, Special to the Times

Wednesday, February 26, 2014

UPPER DARBY — Township officials and homeowners addressed their grievances at Hillcrest Elementary School Monday night following a January ruling from the Commonwealth Court that would allow 24 townhouses to be built on property once owned by Har Jehuda Cemetery.

Media-based business Cornell Homes has proposed to build 24 townhouses on the property right off Marvine Avenue, between Hillcrest Elementary School and Naylor’s Run. The nongated community would be accessible by Marvine only, with a cul-de-sac at the end of the street.

A waiver to allow a 65-degree horizontal curve, under the 100-degree-curve minimum of the subdivision and land development ordinance, was denied by council, which cited safety concerns. A 2013 decision by the Delaware County Court of Common Pleas appealed the township’s decision, saying the township abused its power in not granting a waiver “on the basis of potential safety issues.”

The decision was then upheld by the Commonwealth Court.

“Accordingly, without sufficient evidence to support a finding that granting the proposed modification would actually create or result in safety issues,” said Commonwealth Judge Renée Cohn Jubelirer in her opinion, “the township council erred in concluding that granting the request would neither be in the public interest nor would the purpose and intent of Section 403.3.2(1) of the (subdivision and land development ordinance) be observed.”

During an August 2012 hearing on the proposal, Cornell used expert testimony based upon traffic and engineering studies, which showed that 30-foot fire trucks could navigate the curve.

Township Fire Chief Ed Cubler, stated he “thought” the truck wouldn’t be able to navigate the curve.

“However, the foregoing testimony shows that the fire chief’s safety concerns are based upon specualtion and do not constitute competent evidence to support the township council’s decision,” said Cohn Jubelirer.

An emergency access entrance from Bond Avenue onto the cul-de-sac is also proposed in the development plans.

Solicitor Adam Matlawski, who represented the township in the appeals process, succumbed to the court’s decision.

“I may disagree with the court’s opinion,” Matlawski said, “but the bottom line is two levels of appeals the town has fought against this, and the plan applies, in all respects, to all land and subdivision ordinances.”

Matlawski added that appealing to the Pennsylvania Supreme Court was not an option, believing the court would not hear the case.

Mayor Tom Micozzie heeded the solicitor’s advice to not appeal the case further, which would have cost, at minimum, $200,000.

“I’m not happy, but to just drag it on for the end result that you’re going to have again is wasting tax dollars,” said Micozzie. “I would rather put that money and energy in to making sure that this job gets done 100 percent correctly.

Residents of the area were still less than enthused about the development, citing water run-off from Naylor’s Run and property values as their main concerns.

“You’re going to take houses that have already dropped in value and put in 24 more houses to add to the market, you’ve just lowered the value of the other houses,” said Bond Avenue homeowner Kimitha Cashin, adding that it would also add traffic and strain the streets sewer infrastructure.

Council Vice President Tom Wagner, who represents District 3, where the development will be, was a vocal opponent of the development from the start, but said with any development, “you hope property values will increase” and create jobs.

“Overall, I don’t think that outweighs the concerns that caused us to vote this down,” said Wagner. “But now we’re presented with it whether we like it or not, so we should look for as much good as we can.”

Matlawski said he anticipates a final plan, which includes the 65-degree horizontal curve and emergency access entrance, to be presented in the near future. He estimates construction could start in the summer.